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From presidents Carter, George H.W. Bush, Clinton, and George W. Bush.

Is it Time for Filibuster Reform?

James Stewart in “Mr. Smith Goes to Washington” (1939). In the movie, Mr. Smith launches a filibuster to postpone an appropriations bill and prove his innocence. PD.

Another partisan battle appears on the horizon and, no, it’s not about the fiscal cliff. Battle lines are being drawn over rules in the Senate. For the next Congress, Senate Majority Leader Harry Reid is considering limiting filibusters on motions to proceed and debate bills (but not on votes to pass legislation), making filibusters shorter and requiring senators who want to filibuster to hold the floor of the Senate and talk. Republican Leader Mitch McConnell (Kentucky), said even these narrow measures would marginalize the Senate minority. Quoting a 2005 speech by then-Senator Barack Obama, McConnell warned that if Reid changes the rules, hyperpartisan fighting and gridlock will only increase. Senate GOP Whip John Cornyn (Texas) went so far as to claim that the reform “will shut down the Senate. It’s such an abuse of power.” But, never mind the fact that the GOP threatened the same rule changes back in 2005 when they held the majority and Democrats were using obstructive tactics.

The co-existence of partisanship and the filibuster are nothing new in the Senate. Indeed scholars have shown that partisanship and filibusters frequently went hand-in-hand in the late nineteenth and early twentieth century on issues ranging from important to trivial. For example, the 1880 election produced a narrow split between Republicans and Democrats and both parties sought to use parliamentary maneuvers to their advantage. Between March 24 and May 6 of 1881, 114 dilatory motions were made to prevent Republicans from replacing Democratic officers in the organization of the new Congress. The filibuster only ended when President Garfield agreed to remove certain appointments. In modern times, the filibuster has been increasingly used by the minority party in the Senate to block presidential appointments. For example, between 2001 and 2003 and again in 2005, Democrats utilized the parliamentary maneuver to block George W. Bush’s judicial nominees. Republicans have similarly used the maneuver to prevent Barack Obama’s appointments.

As Frederick McClure, who served as assistant for legislative affairs during the George H. W. Bush presidency, noted in a Miller Center Oral History interview, the filibuster also presents a major challenge to pursing and implementing the president’s legislative objectives:

[T]the House is structured differently. And the way legislation moves through that part of the meat grinder is totally different from what we’re doing on the Senate side where you don’t have any rules, but you’ve got all these unanimous consent things you’ve got to get to and then you run the risk of this whole filibuster thing. Never do you have to worry about that in the House. So it’s a different game—not a game—challenge that you have because of the sheer volume.

For example, Ray Marshall, Labor Secretary under President Jimmy Carter, remarked in a Miller Center Oral History interview about the fight the administration faced on the issue of labor law reform in the late 1970s:

Later on, when we had done all of our legislation the last major thing we had to do was labor law reform, and we were in pretty constant contact during that time because it was a tough fight. We didn’t have any trouble going through the House. It passed the House with about a hundred vote majority. But we had a filibuster in the Senate that we had to try to break, and I thought it was terribly important for us to break it, so we spent a fair amount of time trying to figure out how to do it.

The filibuster has also been used as the ultimate weapon of choice to block action on civil rights. In 1891, the Democrats used the filibuster to resist the “Force Bill,” which would have mandated cooperation from election officials to allow African Americans to vote. (As an aside, Vice President Levi P. Morton angered many members of his own Republican Party when he refused to use his position to end the Democratic filibuster. By some accounts, this is the reason Benjamin Harrison chose a new vice presidential running mate in 1894.) This episode served as a prelude to what would come in the 1950s. According to Historian Julian Zelizer, Hubert Humphrey, who had angered southern conservatives including in his own party by championing civil rights and legislative reform, went so far as to call the “undemocratic” filibuster “evil.”

In 1957, South Carolina Senator Strom Thurmond established the record for the longest individual speech, filibustering for 24 hours and 18 minutes against the Civil Rights Act of 1957. However, Thurmond’s filibuster ultimately didn’t influence the final vote and on September 9, 1957, President Dwight D. Eisenhower signed the Civil Rights Act of 1957, the first civil rights bill since Reconstruction, into law. It’s passage marked the beginning of a more fervent assault on the Jim Crow state. In a press conference on February 1, 1964, LBJ noted that he expected a filibuster when the civil rights legislation eventually reached the Senate. Not only did Senate Republicans filibuster the 1964 Civil Rights Act, they did so for 83 days. On June 19, 1964, the Senate passed a compromised version of the bill, a critical legal measure that ended unequal application of voter registration requirements and racial segregation in schools, at the workplace and by facilities that served the general public. It also required equal employment opportunities to be provided by employers and laid the groundwork for passage of the Voting Rights Act in 1965.

So is it time for filibuster reform? In making the case for the ratification of the Constitution, James Madison and Alexander Hamilton argued that requiring supermajorities for legislative action may be too high of a price to pay. In Federalist No. 58, Madison wrote:

It has been said that more than a majority ought to have been required for a quorum, and in particular cases, if not in all, more than a majority of a quorum for a decision....[But that would mean] ... n all cases where justice or the general good might require new laws to be passed, or active measures to be pursued, the fundamental principle of free government would be reversed. It would be no longer the majority that would rule; the power would be transferred to the minority. Were the defense privilege limited to particular cases, an interested minority might take advantage of it to screen themselves from equitable sacrifices to the general weal, or in particular emergencies to extort unreasonable indulgences.

And Alexander Hamilton declaimed in Federalist No. 22, “To give a minority a negative upon the majority (which is always the case where more than a majority is requisite to a decision), is, in its tendency, to subject the sense of the greater number to that of the lesser.”

But both framers also noted that super-majority votes could be useful in some circumstances. Madison wrote in Federalist No. 58 that they could serve as a “shield to some particular interests, and another obstacle generally to hasty and partial measures” and Hamilton wrote in Federalist No. 73 about the benefits of requiring a majority in both chambers to override a presidential veto. Before the rise of greater partisan and sectional tensions in the 19th century, the Senate didn’t have the need to limit debate. While the filibuster has provided an important means for the minority to debate its position and to educate the public, at least some reform is needed to mitigate the ongoing gridlock and to restore Constitutional balance. First, minorities (of either party) should be limited in their ability to block presidential nominations. Second, limits could be placed on the use of the filibuster at different stages of the process, as both parties have previously proposed. Such limits could include restrictions on length of intervention or specific stages (such as on motions to proceed) so that the Senate can actually do work and keep a schedule. Finally the practice of secret holds should be ended. If an individual senator wishes to obstruct a measure, it should be done publicly and with open debate.